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    Not Reportable

    CASE NO: JS 1135/12

    In the matter between:



    TS AFRIKA CATERING SOLUTIONS First Respondent SODEXO SOUTHERN AFRICA (PTY) LTD Second Respondent Heard: 28 February 2014

    Judgment: 28 February 2014

    Edited: 28 March 2014





    [1] The applicants have filed a statement of claim in terms of Rule 6, in

    which they seek a declaratory order to the effect that the cancellation of

    the outsourcing contract between the first respondent and Media 24, and

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    the subsequent awarding of the same contract by Media 24 to the

    second respondent, constitutes the transfer that business as a going

    concern for the purposes of section 197 of the Labour Relations Act.

    [2] The applicants also seek a declaratory order to the effect that their

    contracts of employment transferred to the second respondent with no

    loss of benefit, and that this order operates retrospectively from 1 May

    2012. The statement of claim was drafted and the referral to this Court

    made by the applicants erstwhile attorney of record. He withdrew a week


    [3] In response to the statement of claim, the second respondent submits

    that the declaratory relief sought by the applicant is not competent and

    that regardless of the merits of the claim, the referral should be

    dismissed for that reason. In essence, as I understood the argument,

    the second respondent contends that the failure by the applicants to refer

    an unfair dismissal dispute to this Court renders the relief they seek, i.e.

    a declaratory order as to whether section 197 applies, to be of no

    consequence. At the outset of the trial, which commenced yesterday,

    the parties representatives were invited to address the Court on this


    [4] The material facts relevant to the preliminary issue I have outlined are

    briefly the following. On 14 April 2012, Media 24 advised the first

    respondent that the second respondent would take over the business of

    providing catering at its premises, with effect from 1 May 2012. When

    the applicants presented themselves after a handover to the second

    respondent, they were told that there were no jobs for them at the site

    and they say that they were evicted from Media 24s premises.

    [5] It appears from the pre-trial minute that the majority of the applicants

    were employed by the first respondent on fixed-term contracts, on other

    sites, with effect from June 2012 and that they remain so employed. I

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    accept that the terms of that employment may be different, but the fact

    remains that in respect of all but three of the applicants continue to be

    employed by the first respondent.

    [6] On 5 May 2012, the applicants referred disputes to the CCMA. They

    categorised the dispute as ones concerning an unfair dismissal and

    indicated that they wish to be reinstated or compensated. On 22 May

    2012, for reasons that are not apparent to me, the applicants referred a

    dispute to the Bargaining Council, in which they claimed that they had

    been unfairly dismissed by the second respondent.

    [7] That dispute was categorised as a dispute concerning an unfair

    retrenchment. The reason for that categorisation is not apparent. The

    dispute remained unresolved after conciliation meeting and on 2 August

    2012, a significant date for the purposes of the preliminary issues that

    have been raised, a certificate of outcome to this effect was issued by

    the Council.

    [8] For reasons that are not apparent, the matter was thereafter referred to

    the CCMA for arbitration. The arbitration was set down for 26 November

    2012. The hearing was preceded by correspondence between the

    parties respective attorneys. Specifically, the second respondents

    attorney advised the applicants erstwhile attorney that given the nature

    of the claim the CCMA lacked jurisdiction to arbitrate the dispute and that

    the matter ought to have been referred to this Court. Despite that

    advice, the applicants persisted with their claim in the CCMA. Not

    surprisingly, the commissioner ruled that the CCMA lacked jurisdiction

    [9] On 7 March 2013, the applicants erstwhile attorney filed the statement of

    case to which I have referred. The statement of case makes no mention

    of any dismissal, let alone an unfair dismissal. The high watermark for

    the applicants is an averment to which I have made reference regarding

    events when the applicants presented themselves at Media 24 after 30

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    April when the applicants in effect say that their tender of services was


    [10] It is often forgotten that this Court is a creature of statute, that its

    powers of jurisdiction are defined and conferred by the LRA and other

    labour related legislation. The Court has authority and inherent powers

    only in relation to matters under its jurisdiction. Section 157 of the Act

    provides that the Court has for exclusive jurisdiction in respect of matters

    that either in terms of the LRA or any other law are required to be

    determined by this Court.

    [11] Rule 6 of the Rules of this Court regulates matters that may be

    referred for determination and establishes the procedure to be followed.

    Rule 7 and 7(A) applies to those matters required to be brought by way

    of application. In other words, this Court does not operate on the

    principle applicable in the High Court where the foreseeability of any

    material dispute of fact largely dictates the appropriate procedure. In this

    Court, the Rules are far more prescriptive. The nature of the dispute

    between the parties both serves to confer jurisdiction on the Court but

    also dictates the manner in which a matter is to proceed, whether by way

    of action or motion. This Court is afforded a large range of powers in

    terms of section 158 of the Act, including the power to make declaratory

    orders. But the Court may not exercise any of its powers if it has no


    [12] The applicants sought a declaratory order, by way of a Rule 6 referral,

    to the effect that s 197 applies to a particular transaction. As I have

    indicated, it appears to me from the pleadings filed (which is the basis on

    which jurisdiction is to be determined), that this Court has no jurisdiction

    to entertain the applicants claim. There is no unfair dismissal claim that

    has been referred to this court. The applicants ought at least to have

    asserted the existence of a dismissal, and averred sufficient facts to

    sustain the claim that the reason for the dismissal is a transfer in terms of

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    section 197, or a reason related to the transfer. In other words, in the

    statement of case, the applicants failed to plead facts to sustain a course

    of action recognisable by this Court in terms of Rule 6. I do not

    understand the applicants to dispute this proposition.

    [13] This morning, after the proceedings were stood down yesterday in

    order for the Court to prepare a ruling in regard to the preliminary issues

    raised by the second respondent, the applicant filed an amendment in

    terms of which the intention to amend the statement of case in a number

    of respects was foreshadowed. That amendment seeks to introduce a

    reference to the existence of a dismissal and the reason for the

    dismissal, being one related to a transfer contemplated in section 197.

    [14] The terms of the amendment further acknowledge that the applicants

    have failed to comply with section 191(5)(b)(i) of the Act, in that the

    statement of claim was filed outside of the 90-day period, which runs

    from the date on which the certificate of outcome was issued. As I have

    indicated, the statement of claim was filed some seven months after that

    date, thereby being some four months out of time. In the notice of

    amendment, the applicants seek to explain the reasons for the delay.

    These reasons relate to advice received, it would appear, from the

    Bargaining Council, and subsequent directions issued by the CCMA.

    [15] The amendment also contemplates the substitution of the relief

    sought by incorporating prayers which would have the effect of

    condoning the late referral of the dispute for adjudication, and an order to

    the effect that the applicants were dismissed for an automatically unfair

    reason in terms of section 187(1) of the Act. More specifically, each of

    the applicants claims 24 months remuneration calculated at the rate of

    remuneration as at the date of their dismissal.

    [16] Mr Watt-Pringle SC, on behalf of the second respondent, objected to

    the proposed amendment and submitted that the applicants had failed to

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    file a substantive application for amendment setting out all of the relevant

    facts and circumstances in which the amendment was sought, and that in

    the absence of such a substantive application and in view of the

    prejudice that would be ca


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